US v. Vastola

Decision Date01 September 1987
Docket NumberCrim. A. No. 86-301(SSB).
PartiesUNITED STATES of America, v. Gaetano VASTOLA, a/k/a "Tommy," a/k/a "Corky," a/k/a "The Galoot," a/k/a "The Big Guy," Palmer Brocco, a/k/a "Sonny," Nicholas John Massaro, Jr., Rudolph Farone, Larry Martire, Elias Saka, a/k/a "Lew," Benjamin Stone, George Santoni, Thomas Zito, a/k/a "Mr. Gordon," a/k/a "Tommy Russo," Charles Majuri, Dominick Canterino, Morris Levy, Howard Fisher, Alexander D'Alessio, Sr., a/k/a "Pope," Alexander D'Alessio, Jr., a/k/a "Popie," John Brennan, a/k/a "Jack," Barry Harris, Bruce Howard, Daniel Marino, Paul Sanzaro, and Vincent Uris, a/k/a "Butch", Defendants.
CourtU.S. District Court — District of New Jersey

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Office of the U.S. Atty. by Bruce Repetto, Andrew T. Baxter, Asst. U.S. Attys., Newark, N.J., for U.S.

Michael Rosen, New York City, for defendant Vastola.

Ryan, Pedicini & Donnelly by Rita Donnelly, West Orange, N.J., for defendant Brocco.

Joshua Markowitz, Lawrenceville, N.J., for defendant Massaro.

DeCotiis, Frino & Lundstein by William R. Lundstein, Roseland, N.J., for defendant Farone.

Cathy Waldor, Montclair, N.J., for defendant Martire.

Lyle Hough, Trenton, N.J., for defendant Saka.

Office of the Federal Public Defender by Richard Coughlin, Asst. Federal Public Defender, Camden, N.J., for defendant Stone.

Tomar, Seliger, Simonoff, Adourian & O'Brien by Charles N. Riley, Haddonfield, N.J., for defendant Santoni.

Barry Schulman, Brooklyn, N.Y., for defendant Zito.

Raymond R. Beam, Jr., Bloomfield, N.J., for defendant Majuri.

Michael B. Pollack, New York City, for defendant Canterino.

Michael Querques, Orange, N.J., for defendant Levy.

Leon Borstein, New York City, for defendant Fisher.

Cariddi & Garcia by Anthony Cariddi, Hackensack, N.J., for defendant D'Alessio, Sr.

Louis Sette, Ridgewood, N.J., for defendant D'Alessio, Jr.

David L. Rhodes, Lawrenceville, N.J., for defendant Brennan.

Jack Urscheler, Fort Lee, N.J., for defendant Harris.

Robert A. Farkas, Trenton, N.J., for defendant Howard.

Brown & Connery by William M. Tambussi, Westmont, N.J., for defendant Marino.

Ken Lange, Bay Harbor, Fla., for defendant Sanzaro.

Julian DeAngeli, Lawrenceville, N.J., for defendant Uris.

TABLE OF CONTENTS I. INTRODUCTION II. MOTIONS TO DISMISS, TO STRIKE AND TO FORCE THE GOVERNMENT TO ELECT BETWEEN CHARGED OFFENSES AND COUNTS A. Defendants' Joint Motion to Dismiss Counts 1 and 3; or in the Alternative to Dismiss Acts 1, 17, 18, and Count 1, ? 5 Because Multiple Conspiracies are Plead as Predicate Acts B. Defendants' Joint Motion to Compel the Government to Elect Between the Two Substantive RICO Counts (1 and 2) II. MOTIONS TO DISMISS, TO STRIKE AND TO FORCE THE GOVERNMENT TO ELECT BETWEEN CHARGED OFFENSES AND COUNTS?€” Continued C. Defendants' Joint Motion to Strike Surplusage from the Indictment (1) The Preamble (2) "Racketeering" and "Loansharking" (3) Aliases (4) "And with others" and "and others" and "and other criminal means." D. Defendant Farone's Motion to Dismiss Counts 1 and 3 E. Defendants' (Levy and Fisher) Motion to Dismiss Counts 33 or 34 as Duplicitous or in the Alternative to Force the Government to Elect Between Charges Alleged F. Defendant Harris' Motion to Dismiss Counts 41, 48, and 75, as Insufficient Pleadings and For a Bill of Particulars G. Defendant Majuri's Motion to Dismiss Counts 3 and 98 III. MOTIONS TO SEVER A. The Severance Plan 1. The RICO Trial a. Case Management b. Firearms Charges i. Title 18 U.S.C. App. ? 1202 ii. Title 26 U.S.C. ? 5861 2. Majuri Firearms Trial 3. Other Individual RICO Defendants' Motions to Sever a. Majuri b. Stone 4. Non-RICO Defendants' Motions to Sever 5. Order of Trials and Continuance Motion IV. MOTIONS FOR PRETRIAL HEARINGS AND DISCOVERY A. Defendants' (Levy and Fisher) Motion for Brady Material B. Defendants' Joint Motion For Pretrial Proffer of a Single Conspiracy C. Defendants' Joint Motion for a James Hearing D. Defendants' Joint Motion for Pre-trial Hearings on Evidentiary Material (Prior Conduct, Prior Convictions, Bad Acts) E. Defendants' Joint Motion for Pretrial Discovery (Witness List, Statements of Non-Testifying Witnesses, Grand Jury Information) F. Defendants' Joint Motion for a Bill of Particulars V. MOTIONS TO SUPPRESS A. Individual Defendants' Motions To Suppress Fruits of Searches 1. Vastola Motion a. Fruits of Wire and Mail Fraud b. Fruits of Extortion 2. Saka Motion 3. Majuri Motion 4. Brocco Motion V. MOTIONS TO SUPPRESS?€”Continued B. Defendants' Joint Motion To Suppress Electronic Surveillance 1. The Government's Electronic Surveillance Did Not Constitute a General Search 2. Probable Cause and the New Jersey Surveillances a. The November 28, 1984 Surveillance at the Massaro Residence b. The December 5, 1984 Amendment, and the December 14 and 24 Extensions of the Massaro Surveillance c. The Union County Prosecutor's Video Warehouse Electronic Surveillance Order, Amendment, and Extensions d. The New Surveillance at Video Warehouse, Amendment and Extensions e. The Brocco Residence Surveillance f. The Killeen and Majuri Residences Surveillance g. The March 14, 1985 Federal Video Warehouse Surveillance h. The April 16 Video Warehouse Order i. The May 14 Video Warehouse Order j. The June 26 Video Warehouse Order k. The July 25 Video Warehouse Order 3. Defendants' Request For a Franks Hearing 4. Failure to Exhaust Ordinary Investigative Means 5. Delay in Sealing the Fruits of the March 25, 1985 Video Warehouse Order 6. The Maryland Surveillance Orders a. The March 19 Surveillance Order b. The April 23, 1985 Extension of the Maryland Surveillance 7. New York Federal Surveillance 8. Defendants' Request for Orders and Applications for Surveillances at the Olympia Esposito Residence, the Smith Street Democratic Club, and Manhattan Social Clubs a. The Olympia Esposito Residence 10-day Reports b. The Democratic Club Applications and Orders c. The Manhattan Social Clubs Applications and Orders

OPINION

BROTMAN, District Judge:

I. INTRODUCTION

Presently before the court are a voluminous set of pretrial motions. Oral argument was heard on the Brady motion of defendants Levy and Fisher on June 12, 1987, and the remainder of the motions were argued on July 10, 1987. This case is based on a 114-count indictment naming 21 defendants. Ten defendants are named in counts alleging violations of the Racketeering Influenced Corrupt Organization Act ("RICO"), 18 U.S.C. ? 1961 et seq. Count 1 alleges a ? 1962(c) violation based on a "pattern of racketeering activity." Count 2 alleges a ? 1962(c) violation based on "collection of unlawful debt." These two counts are referred to throughout the opinion as substantive RICO counts. Count 3 alleges a ? 1962(d) violation based on a RICO conspiracy. This count is referred to as the RICO conspiracy count. The remaining counts fall into the following categories of criminal activity: narcotics, usury and extortion, mail ("bust-out") fraud, wire ("Western Union") fraud, copyright (video "bootlegging") fraud, insurance fraud, bankruptcy fraud, gambling, and firearms.

The pretrial motions are grouped into categories and discussed in parts II-V of this opinion: Part II, motions to dismiss, to strike, and to force the government to elect between charged offenses and counts; Part III, motions to sever; Part IV, motions for pretrial hearings and discovery; and Part V, motions to suppress. The order follows the opinion.

II. MOTIONS TO DISMISS, TO STRIKE AND TO FORCE THE GOVERNMENT TO ELECT BETWEEN CHARGED OFFENSES AND COUNTS

A. Defendants' Joint Motion to Dismiss Counts 1 and 3; or in the Alternative to Dismiss Acts 1, 17, 18, and Count 1, ? 5 Because Multiple Conspiracies are Plead as Predicate Acts

Defendants move to dismiss counts 1 and 3 because they include conspiratorial acts as predicate offenses. This is allowed by the plain language of the statute. 18 U.S.C. ? 1961(1). The government cites second circuit law endorsing this practice. See United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984); United States v. Santoro, 647 F.Supp. 153, 177-78 (E.D.N.Y.1986). It appears that the Third Circuit Court of Appeals has not directly faced the question. The defense asserts that third circuit law, under Gomberg, requires that such pleading not be allowed. See United States v. Gomberg, 715 F.2d 843 (3d Cir.1983). However, Gomberg is not squarely on point. It addresses a duplicity question and holds that a single conspiracy count can allege multiple crimes. 715 F.2d at 846. The alleged RICO conspiracy (count 3) has multiple objects contained in the pattern of racketeering and the collection of unlawful debt. At trial the government will have to prove beyond a reasonable doubt that there existed a unified agreement to participate in the affairs of the "Vastola enterprise" through a pattern of racketeering or through the collection of unlawful debt. See United States v. Boffa, 513 F.Supp. 444, 475 (D.Del.1980). The multiple conspiracy doctrine requires that all RICO enterprise defendants be shown to have a nexus "which signals the existence of a truly unified agreement." Id. at 474; see also United States v. Smith, 789 F.2d 196, 200 (3d Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986) (In commenting on a mail fraud conspiracy indictment, the court stated, "a finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance."). One district court judge in New Jersey has explicitly rejected the second circuit approach. See United States v. Local 560, Int'l Brotherhood of Teamsters, 581 F.Supp. 279, 332 (D.N.J. 1984) ("I conclude that proof...

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